US v. Richard Savage
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:08-hc-02182-MU-JG. [999255881]. [13-6326]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6326
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
RICHARD SAVAGE,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Graham C. Mullen,
Senior District Judge. (5:08-hc-02182-MU-JG)
Argued:
October 30, 2013
Decided:
December 10, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Keenan concur.
ARGUED: Jeffrey William Gillette, GILLETTE LAW FIRM, PLLC,
Raleigh, North Carolina, for Appellant. Michael Bredenberg, FMC
BUTNER, FEDERAL MEDICAL CENTER, Butner, North Carolina, for
Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney,
R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
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AGEE, Circuit Judge:
Richard
Savage
appeals
from
the
judgment
of
the
United
States District Court for the Eastern District of North Carolina
civilly committing him as a “sexually dangerous person” under 18
U.S.C. § 4248. Savage contends that the district court lacked
jurisdiction
under
this
statute
because,
as
a
District
of
Columbia offender, he was not “in the custody of the Bureau of
Prisons” (“BOP”) as required by § 4248(a). He separately argues
that
the
district
should have
§ 4248(d).
been
For
court
erred
released
to
the
reasons
in
committing
the
set
District
forth
him
of
below,
because
Columbia
we
he
under
affirm
the
district court’s judgment.
I.
Factual and Procedural Background
In 2006, Savage, who has a history of repeated sexual and
nonsexual
offenses,
pled
guilty
and
was
convicted
of
distributing heroin in violation of the District of Columbia
Code (“D.C. Code”). Savage served his thirty-six-month sentence
for that offense in the BOP facility in Butner, North Carolina.
Before
his
Government
scheduled
timely
release
certified
date
Savage
for
as
a
that
offense,
“sexually
the
dangerous
person” under § 4248(a) on December 18, 2008. The next day, the
district court stayed the civil commitment proceedings, noting
that
had
been
the
consistent
2
practice
in
other
§ 4248
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proceedings brought while appeals were pending in United States
v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007), aff’d, 551
F.3d 274 (4th Cir. 2009), and rev’d and remanded, 560 U.S. 126
(2010), on remand, rev’d and remanded, 627 F.3d 513 (4th Cir.
2010).
Unaware
of
the
pending
civil
commitment
proceedings
in
April 2010, the District of Columbia Court Services and Offender
Supervision Agency (“CSOSA”) inquired as to Savage’s anticipated
release into the District of Columbia upon the completion of his
criminal
sentence.
When
CSOSA
contacted
the
BOP
regarding
Savage’s status, the BOP explained that Savage had been civilly
committed as a sexually dangerous person and therefore would not
be released. 1 After communicating with the BOP,
CSOSA closed
Savage’s case.
Once
the
stay
of
proceedings
related
to
Comstock
was
lifted, Savage moved to dismiss the § 4248 proceedings against
him and sought immediate release. He argued that the district
court lacked jurisdiction over him because, as a District of
Columbia offender, he was not “in the custody” of the BOP for
purposes
of
§ 4248.
Citing
our
decision
in
United
States
v.
Joshua, 607 F.3d 379 (4th Cir. 2010), Savage argued that the
D.C. Code, like the Uniform Code of Military Justice (“UCMJ”) in
1
In fact, Savage had not yet been civilly committed but
rather was in the initial stages of that process.
3
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Joshua, is a separate body of law from Title 18 of the U.S.
Code. Consequently, Savage posited that the BOP maintained only
physical custody over him, not the legal custody required by
§ 4248
to
adjudicate
a
civil
commitment.
The
district
court
denied the motion, concluding that “[t]he statutory framework of
both the D.C. Code and the federal code endows the [BOP] with
the legal custody, not merely physical custody, over D.C. Code
offenders.” United States v. Savage, No. 5:08-HC-2182-FL, 2011
U.S. Dist. LEXIS 112959, at *4 (E.D.N.C. Sept. 30, 2011).
At
presented
the
subsequent
evidence
commitment
detailing
hearing,
Savage’s
the
history
Government
of
sexual
offenses. The district court concluded that Savage satisfied the
§ 4248 criteria and ordered him to be civilly committed as a
sexually dangerous person. 2
Savage noted a timely appeal, and we
have jurisdiction pursuant 28 U.S.C. § 1291.
II.
Analysis
The Adam Walsh Child Protection and Safety Act, codified at
18 U.S.C. § 4248, authorizes the civil commitment of “sexually
dangerous person[s].” In pertinent part, § 4248 provides that
“[i]n relation to a person who is in the custody of the Bureau
2
Savage does not challenge the district court’s findings
that he satisfied the non-jurisdictional criteria for commitment
under § 4248.
4
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of Prisons, . . . the Attorney General . . . may certify that
the person is a sexually dangerous person. . . . The court shall
order a hearing to determine whether the person is a sexually
dangerous person.” 18 U.S.C. § 4248(a) (emphasis added). 3 The
statute further provides that
[i]f, after the hearing, the court finds by clear and
convincing evidence that the person is a sexually
dangerous person, the court shall commit the person to
the custody of the Attorney General. The Attorney
General shall release the person to the appropriate
official of the State in which the person is domiciled
or was tried if such State will assume responsibility
for his custody, care, and treatment.
Id. § 4248(d) (emphasis added).
In this appeal, Savage raises two issues. First, he argues
that the district court erred in concluding that, for purposes
of § 4248(a), Savage was “in the custody of” the BOP. Second,
Savage contends that the district court erred in committing him
because § 4248(d) instead required him to be released to the
District of Columbia. Both issues are questions of statutory
interpretation—“quintessential
question[s]
3
of
law,
which
we
Section 4248(a) also authorizes the Attorney General
to certify as a “sexually dangerous person” anyone “who has been
committed to the custody of the Attorney General pursuant to
section 4241(d), or against whom all criminal charges have been
dismissed solely for reasons relating to the mental condition of
the person.” 18 U.S.C. § 4248(a). The BOP does not argue that
Savage falls into either of these categories. We agree those
provisions do not apply in this case and consider only whether
Savage was “in the custody of the Bureau of Prisons.”
5
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review de novo.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131,
137 (4th Cir. 2009).
A.
We consider first Savage’s argument that the court lacked
the jurisdiction under § 4248 to civilly commit him because he
was
not
“in
the
custody
of
the
[BOP].”
In
essence,
Savage
contends that, as a District of Columbia offender, he was not
“in the custody” of the BOP for purposes of § 4248 even though
he was serving his term of confinement in the BOP.
Savage
conclusion.
proposes
three
basic
reasons
to
support
this
First, he argues that, having been convicted under
the D.C. Code, he is not subject to § 4248 because that statute
applies only to individuals in the federal criminal process.
Second, Savage contends that the Attorney General and the BOP
are
not
the
same
authority
for
purposes
of
determining
“custody,” and that the D.C. Code transfers convicted offenders
into
the
custody
of
the
Attorney
General
following
their
sentencing. Third, and finally, he argues that any control that
the
BOP
exercises
over
D.C.
prisoners
is
not
“custody”
as
contemplated by § 4248. For these reasons, Savage posits that
his case is “virtually indistinguishable” from Joshua and he,
too, should not be subject to commitment under § 4248 because
the district court lacked the jurisdiction to do so.
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Before addressing these arguments, we first summarize our
holding
in
Joshua,
where
we
also
“custody” in the context of § 4248.
addressed
the
meaning
of
In that case, an ex-Army
officer had been convicted by courts-martial of violations of
the UCMJ and was serving his term of imprisonment in a BOP
facility under a “Memorandum of Agreement” entered into under
the statutory authority of UCMJ Article 58. Joshua, 607 F.3d at
381–82. The Memorandum of Agreement stated that the BOP would
house
up
to
500
U.S.
Army
prisoners,
who
were
deemed
“contractual boarders.” Id. at 381. By its terms, the Memorandum
of
Agreement
facilities
Army,’
provided
[would]
which
that
remain
‘retain[ed]
“military
‘in
prisoners
permanent
clemency
custody
authority.’”
within
of
Id.
the
at
BOP
U.S.
382
(quoting the Memorandum Agreement). This contractual custody was
statutorily authorized only as to a prisoner’s “confinement,”
not his legal status for § 4248 purposes: “UCMJ Article 58’s
language
authorizing
Joshua’s
‘confinement’
within
a
BOP
facility never transferred legal custody away from the Army.”
Id. at 389.
We
determined
in
Joshua
that
the
term
“custody”
in
§ 4248(a) means not simply physical custody, but legal custody—
the “ultimate legal authority” over the offender. Id. at 388.
And we held that the provisions of the UCMJ, reflected in the
terms of the Memorandum of Agreement, established that the BOP
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did not have legal, but only physical, custody over Joshua.
The
ultimate legal authority over him always remained with the Army
regardless of Joshua’s place of physical residence. Id. at 38890. Because the BOP lacked legal custody over Joshua, there was
no jurisdictional authority for civil commitment under § 4248,
and
we
affirmed
the
district
court’s
dismissal
of
the
Government’s § 4248 petition. Id. at 391.
We find the case at bar distinguishable from Joshua. Unlike
Joshua, this case involves the civilian District of Columbia
criminal justice system, not the military system. More to the
point,
District
offenders,
are
of
Columbia
placed
in
the
offenders,
BOP’s
unlike
custody
military
by
statutory
authority, not as a matter of convenience. Section 24-201.26 of
the D.C. Code provides that “[a]ll prisoners convicted in the
District of Columbia for any offense . . . shall be committed
. . .
to
the
custody
of
the
Attorney
General
of
the
United
States or his authorized representative, who shall designate the
places of confinements where the sentences of all such persons
shall be served.” D.C. Code § 24-201.26 (emphasis added). The
D.C. Code refers to “custody” as opposed to mere “confinement,”
the operative statutory language at issue in Joshua. See Joshua,
607
F.3d
authorizing
at
a
389
(“By
military
contrast,
offender’s
Article
confinement
58’s
within
provision
the
BOP
looks much different: ‘a sentence of confinement adjudged by a
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court-marital or other military tribunal . . . may be carried
into execution by confinement in . . . any penal or correctional
institution under the control of the United States . . . .’”
(quoting 10 U.S.C. §858(a))). While “confinement” suggests mere
physical
custody,
reflects
a
“committed
specific
Similarly,
while
“custody,”
the
D.C.
status
Code
Memorandum
of
to
the
beyond
§
custody,”
the
24-201.26
Agreement
place
by
of
expressly
in
Joshua
comparison,
residence.
transfers
expressly
provided that the U.S. Army retained “custody” of him.
In determining what type of “custody” D.C. Code § 24-201.26
intends, we find Frazier v. United States, 339 F.2d 745 (D.C.
Cir. 1964), persuasive. 4 In Frazier, the United States Court of
Appeals for the District of Columbia Circuit determined from the
identical language in the predecessor statute of Section 24201.26 that “it is clear that the ‘custody’ intended is not
limited to actual physical custody, but denotes a type of legal
custody which remains in the Attorney General even though the
prisoner is assigned to an institution over which the Department
4
We further note that because Frazier pre-dates the
creation of the District of Columbia Court of Appeals, it would
ordinarily be afforded the deference due a “state” court
interpreting a “state” statute.
See Ortberg v. Goldman Sachs
Group, 64 A.3d 158, 170 n.2 (D.C. 2013) (“Decisions of the
United States Court of Appeals for the District of Columbia
Circuit issued before February 1, 1971, are binding on this
court.”). As noted, however, Frazier examined the predecessor
statute of § 24-201.26, though that language was the same.
As
such, its interpretation is highly persuasive.
9
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of Justice has no control.” Id. at 746. The appellant, Frazier,
had argued that he was not subject to the Federal Escape Act, 18
U.S.C.
§ 751,
because
he
had
been
transferred
to
a
mental
facility prior to his escape, and the Attorney General’s custody
had ended upon that transfer. Frazier, 339 F.2d at 746–47. The
court,
however,
concluded
that
“the
custody
of
the
Attorney
General is continuous as he discharges his responsibility to
transfer a prisoner ‘from one institution to another . . . for
the well-being of the prisoner.’” Id. at 747 (citation omitted).
Congress’ enactment of the National Capital Revitalization
and Self Government Improvement Act of 1997, 111 Stat. 251; Pub.
L. 105-33, (the “Revitalization Act”) confirms to us that D.C.
Code § 24-201.26 places D.C. offenders into the legal custody of
the Attorney General for the duration of his sentence, no matter
where
the
prisoner
effectively
closed
may
the
be
housed.
District
of
The
Revitalization
Columbia
Act
Department
of
Corrections and “transferred [all D.C. felons] to a penal or
correctional facility operated or contracted for by the Bureau
of
Prisons.”
D.C.
Code
§ 24-101(b).
Not
only
did
the
Revitalization Act place D.C. offenders in the physical custody
of the BOP, but by further “subject[ing] [D.C. offenders] to any
law or regulation applicable to persons committed for violations
of
laws
imposed,
of
and
the
[by
United
States
designating]
10
consistent
the
Bureau
with
of
the
sentence
Prisons
. . .
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responsible
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for
the
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custody,
care,
subsistence,
education,
treatment and training of such persons,” the Act also vested
legal custody in the BOP. Id. (emphasis added); see also, e.g.,
Chase v. Pub. Defender Serv., 956 A.2d 67, 72 & n.7 (D.C. 2008)
(explaining that “[w]hen it enacted the Revitalization Act in
1997,
Congress
functions
shifted
from
the
control
District
over
of
several
justice
to
Columbia
criminal
federal
the
government,” including the “transfer[] [of] sentenced felons to
the
custody
of
the
federal
Bureau
of
Prisons”).
The
Revitalization Act was, by its plain terms, not a contractual
provision for confinement, but the full vesting of all aspects
of custody in the BOP over D.C. offenders.
Contrary
to
Savage’s
contention,
we
conclude
that
for
purposes of § 4248, there is no substantive difference between
vesting legal custody in the Attorney General and legal custody
in the BOP. D.C. Code § 24-201.26 transfers custody to “the
Attorney
General
of
the
United
States
or
his
authorized
representative, who shall designate the places of confinements
where the sentences of all such persons shall be served.” D.C.
Code
§ 24-201.26
(emphasis
added).
Moreover,
Congress
has
provided that “[t]he Bureau of Prisons shall be in [the] charge
of
a
director
appointed
by
and
serving
directly
under
the
Attorney General.” 18 U.S.C. § 4041 (emphasis added); see also
id. § 4042 (stating that “[t]he Bureau of Prisons, under the
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direction of the Attorney General, shall” perform its duties).
Under these clearly delineated relationships, the BOP operates
at
the
Attorney
General’s
officer’s designee.
direction,
and
serves
as
that
The Attorney General and the BOP are thus
equivalent entities for purposes of a § 4248 “custody” analysis.
Since
calculates
the
D.C.
passage
of
the
offenders’
Revitalization
sentences
and
Act,
the
determines
BOP
their
release dates. Savage himself acknowledges that this calculation
is “[t]he most obvious expression of ultimate legal authority
over a prisoner.” (Opening Br. 21.) And while the BOP sentencing
manual
for
D.C.
offenders
is
separate
from
that
for
federal
offenders, the BOP compiled the D.C. offender’s manual in light
of the Revitalization Act’s instructions in order to fulfill
this
component
offenders.
See
of
its
exercise
generally
Change
Federal
of
full
Bureau
Notice
custody
of
over
Prisons,
D.C.
5880.32
1
(2003),
http://www.bop.gov/policy/progstat/5880_032_CN01.pdf.
The
BOP,
by creating and implementing the manual, is significantly more
active in the process than Savage portrays it to be. Because the
BOP
is
responsible
under
the
Revitalization
Act
for
the
calculation of sentences and the “custody, care, subsistence,
education,
treatment
and
training
12
of”
D.C.
offenders,
it
is
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clear that the BOP, as the Attorney General’s representative,
exercises “ultimate legal authority” over D.C. offenders. 5
For all the foregoing reasons, we hold that D.C. offenders
are in the legal custody of the BOP for purposes of § 4248. As
such,
we
conclude
that
the
district
court
did
not
err
in
determining that it had the jurisdictional authority to civilly
commit Savage as a “sexually dangerous person” under § 4248(a)
because he was in the legal custody of the BOP.
B.
Savage also argues that the district court erred in his
civil commitment because § 4248(d) instead required his release
“to
the
appropriate
State
. . .
if
that
State
will
assume
responsibility for his custody, care, and treatment.” 18 U.S.C.
§ 4248(d). Specifically, he contends that, as the District of
Columbia had expressed a willingness when CSOSA contacted the
BOP to coordinate his release plan, § 4248(d) required that he
5
Similarly, D.C. offenders are also not in the same
category as the detainee of the U.S. Immigration and Customs
Enforcement (“ICE”) in United States v. Hernandez-Arenado, 571
F.3d 662 (7th Cir. 2009), who was housed in a BOP facility and
whose custodial status for purposes of § 4248 was at issue.
ICE, as part of the Department of Homeland Security, housed
Hernandez-Arenado in a BOP facility for its convenience, but
“retain[ed] ultimate authority over him.” Id. at 667. Thus, as
in Joshua, there was no statutory transfer of legal custody of
Hernandez-Arenado from ICE to the BOP.
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be released to the District of Columbia. (Opening Br. 23–26.)
Savage, however, never made this argument in the district court.
“[I]ssues raised for the first time on appeal are generally
not
considered
absent
exceptional
circumstances.”
Williams
v.
Prof’l Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002). The
underlying rationales for this rule are “respect for the lower
court, [avoiding] unfair surprise to the other party, and the
need for finality in litigation and conservation of judicial
resources.” Wheatley v. Wicomico Cnty., 390 F.3d 328, 335 (4th
Cir. 2004). Savage contends that he preserved this argument for
appeal on two occasions. We disagree.
First,
Savage
points
to
a
section
of
his
Memorandum
in
Support of his Motion to Dismiss and Release, in which he argues
that “[a]pplication of 18 U.S.C. § 4248 to Respondent Savage
merely because of his physical presence in a BOP facility is
inconsistent
and
interferes
with
the
District
of
Columbia’s
ability to manage his reentry or ongoing confinement pursuant to
the D.C. Code.” (J.A. 41.) This statement, however, is not an
argument based on any statutory release mandate under § 4248(d).
Savage never referred to subsection (d) in this part of his
memorandum but asserted only a vague equitable argument that the
District of Columbia was better able to manage his reentry. This
contention is not an argument that the statute prohibited his
14
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commitment
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under
§
4248(d)
as
Pg: 15 of 16
a
matter
of
law,
as
he
now
contends on appeal.
Second, Savage points to his closing argument during the
commitment hearing. (J.A. 297–303.) While Savage did reference
subsection (d) once, he again made only an equitable argument
that it was more appropriate for the District of Columbia to
treat him. He never argued that the court lacked the authority
to commit him under § 4248(d) because of a statutory requirement
that he be instead released to the District of Columbia. (Id. at
297.) This is a different argument from the one that Savage
presents on appeal: that he should not have been committed under
§ 4248
because
subsection
(d)
required
his
release
to
the
District of Columbia under the express terms of the statute.
Savage has not argued that exceptional circumstances exist
that would compel us to consider an argument raised for the
first
time
in
this
appeal,
and
we
find
none.
Therefore,
we
conclude that Savage has waived his second argument by failing
to raise it in the district court. 6
6
Even if Savage had not waived this argument, and even
assuming arguendo that he could prove CSOSA’s willingness to
assume responsibility for his care, Savage’s argument would
still fail. Savage bases his argument on a misreading of
§ 4248(d), which provides that
[i]f, after the hearing, the court finds by clear
and convincing evidence that the person is a sexually
dangerous person, the court shall commit the person to
(Continued)
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III.
Pg: 16 of 16
Conclusion
For the reasons stated above, we conclude that Savage, as a
D.C. offender, was “in the custody of” the BOP for purposes of
§ 4248
certification
as
a
“sexually
dangerous
person.”
We
further conclude that Savage waived the argument that § 4248(d)
required his release to the District of Columbia. We therefore
affirm the district court’s judgment.
AFFIRMED
the custody of the Attorney General. The Attorney
General shall release the person to the appropriate
official of the State in which the person is domiciled
or was tried if such State will assume responsibility
for his custody, care, and treatment.
18 U.S.C. § 4248(d) (emphasis added). We do not address whether
CSOSA “will assume responsibility for [Savage’s] custody, care,
and treatment.” But even by the plain language of the statute,
the § 4248(d) provision for release to state officials applies
only after the district court has found at a § 4248 hearing that
the individual is a “sexually dangerous person.” Therefore,
§ 4248(d) applies only after the § 4248 hearing and commitment
determination.
Savage remains free to seek that course as it
relates to his future commitment, but § 4248(d) did not operate
to bar the § 4248 commitment process.
16
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